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Employment Tribunal Process – Tactics and Tips – Attacking the Claim

In this edition of Joelson’s Employment Tribunal Tactics and Tips series, we look at the options for employers upon receiving an ET1 claim form.

What options are available to employers once the ET1 claim form has been received?

Following receipt of an ET1, employment tribunal claim form as well as seeking advice on the merits and possible value of the claim, the employer should also review any early conciliation certificate (which is usually sent by the tribunal with the ET1) to:

Check that the claim has been submitted in time – taking into account any period of extension as a result of early conciliation

Check that the early conciliation certificate number is the same on the ET1 as on the certificate provided by ACAS

Check that the name of the respondent is correct

If applicable, check that there is a different conciliation number for each respondent named on the ET1.

If any of the above are incorrect this may allow the employer to challenge whether the claim was validly issued by the employment tribunal in the first place.

If there are not any such errors the employer’s ET3 response (defence) form will need to be lodged within 28 days. In such circumstances as well as preparing its response, the employer should also consider other ways to try and deter the employee from continuing to pursue the claim.

Options available include:

Arguing that the claim is an abuse of process e.g. where there have been previous claims and the employee is seeking to re-litigate matters which should have been raised in previous proceedings

Applying for deposit orders of up to £1,000 as a condition of the claim proceeding where it can be shown to have little prospect of success

Applying for strike out on the basis that the claim or the manner in which the claim is being conducted is scandalous, vexatious or has no reasonable prospect of success

Making repeated costs warnings to the employee e.g. explaining to the employee that the claim is legally flawed and setting out the consequences for the employee if they continue to pursue their claim to a full hearing i.e. that the employer will ask for its costs to be paid by the employee.

Although arguing that a claim includes insufficient detail might at first glance seem an attractive way of challenging a claim, employers must also be mindful that this might tip off the employee to correct any drafting errors either voluntarily or by the employment tribunal making an order for further and better particulars of the claim. This could be harmful to the employer especially as the employee may try and insert fresh claims and allegations by way of clarification.

In practice, whilst employers do make applications for strike out, these are seldom granted by the employment tribunal due to the high threshold that must be met. Instead, employers are more likely to be able to persuade a judge that it would be appropriate to grant a deposit order in respect of those parts (or all) of the employee’s claim that has little or no prospect of success. Deposit orders require employees to pay a sum of money to the employment tribunal in order for the claim to progress. In the event that the employee fails to comply with a deposit order, the claim or the specific part of the claim to which the deposit order relates will be struck out by the employment tribunal.

As well as using preliminary hearings to deal with the above applications, it is also a helpful time for the parties to clarify and narrow down the issues in the case.

Even where the employee is refusing to be helpful in agreeing a list of issues to be determined by the employment tribunal, the employer should still attempt to draft such a list to assist the tribunal. Sometimes employees will try to delay agreeing such a list to try and keep their options open to the final hearing. This should be resisted by employers by it drafting a list of issues based solely on the issues raised by the employee in their original ET1.

If the nature of the allegations are particularly sensitive or have the potential to cause damage to the company’s reputation, employers should consider applying for a restricted reporting order (RRO).

The employment tribunal can make an RRO where it is considered necessary in the interests of justice, or to protect the rights of any person under the European Convention on Human Rights (usually on the basis of the right to family and private life). RROs are particularly helpful where one of the main goals of the employee seems to be to cause their employer damage to their reputation – especially where the allegations relate to discrimination or sexual misconduct.

This article is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action.

ASOS plc

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